Lessons From The Sotomayor Saga
She’s a Latina! What does that mean, exactly?
One senator said, marveling, that her biography gave him goosebumps. Another praised her as passing qualification tests with an “A++” and one “enjoyed [the confirmation hearing] so much” that he begged her to let TV stations record her future court hearings. Maybe some of this praise is a bit over the top, but Sonia Sotomayor does have a strong resume and a moving life story.
So why did six senators vote against endorsing her? Why did one say his colleagues were “unnerved by [her] speeches,” and one imply that her nomination put the country at a “dangerous crossroad” and that her confirmation would “corrupt” the judicial system? It would be convenient for Democrats like me if the explanation were simply a story of good versus evil, enlightened progressives and reactionary racists, but the facts suggest otherwise. Senators are political animals and Sotomayor’s Republican detractors are probably motivated by the same concerns that drove Democrats to “Bork” Reagan nominee Robert Bork, to mount a filibuster of Samuel Alito’s nomination, and to cast 46 votes against confirming Clarence Thomas. Republicans are simply innovating on the non-partisan practice of manipulating anything and everything for political gain.
Those of us who are not political hacks, however, should not feel compelled to argue whether this “wise Latina,” in her now infamous quote, made a Freudian slip or a slip of the tongue. We can learn a lot about political grandstanding from the Sotomayor hearings, but can we learn anything to inform our policies from the discourse surrounding the nomination?
If we can, it is probably about diversity or racial preferences, two distinct issues that are usually conflated and used interchangeably because racial issues have never inspired a lot of clear thinking.
Sotomayor’s supporters argued that the court would benefit from more ethnic and gender diversity. Sotomayor said she hoped she would be a better judge than a white man because of her life experiences. This sounds all well and good, but it leaves one with a sense of cognitive dissonance. The argument is premised on the fact that we can predict a lot about a person’s views about the law from his or her race and gender. This seems counterintuitive to anyone who grew up being told it’s your character, not your color, that determines who you are.
Still, at some level it is true we can predict a judge’s votes with some accuracy based on his or her gender and race. Sotomayor probably favors abortion rights because most women do, while a white male nominee would probably oppose racial preference because most white men do. But one has to wonder two things: First, why don’t we just choose someone who we know takes these positions explicitly instead of beating around the bush with race and gender-based guesses? Second, how can we be sure we are picking candidates likely to have the “right” opinions that will make them a good judge?
There is a more nuanced version of the diversity argument that goes: “We need diversity of life experiences on the court so the debate can be better informed.” This, though, is mostly semantics. We are still left with the questions of how you can know much about a person’s life experience just from his or her race and gender, why not just examine consider biographies directly, and how you know these life experiences will make them more likely to vote the “right” way. These arguments are far from satisfying as arguments that diversity is valuable in and of itself, but I suspect this isn’t important, as few people believe in diversity as an end in itself.
I’ve noticed that in debates, diversity-proponents tend to fall back on the argument that diversity is good not necessarily because it is useful but because it is a signal of equal opportunity. If this is true, then diversity is not the goal, it is just a crude measure of something else and the public discourse on diversity is misguided. We are also left wondering why we should stop with gender and ethnic diversity and not include, say, sexual orientation, religion, weight, or state of birth, all of which can be sources of discrimination.
Many people are also arguing that Sotomayor is an example of the success of racial preferences in college admissions. These people seem to think you can base policy on anecdotes about one person, but before dismissing their naiveté it is worth looking at aggregate data to see if they have a point.
First, for the sake of argument, I will assume that colleges should do a certain amount of social engineering with their admissions and use “context” in evaluating applications because otherwise affirmative action would be pointless or wrong. (Personally, I have deep reservations about this assumption because it makes it easy to ignore remedying the causes of the disparities. But that is a debate for another day.)
With this assumption it makes sense to consider many variables like high school attended and parent’s education before judging an applicant’s SAT score, grades and resume. The available evidence, however, suggests that only one variable, self-reported race, is used for context in college admissions.
This means the child of a poor farmer in Mississippi is treated as if he has all the resources of a student at a New England boarding school. This hardly seems like what a well-intentioned admissions office would do, yet when former Princeton president William Bowen and colleagues studied data from selective universities they found that, all else equal, there is a large admissions advantage for being a minority and no advantage for being from a low-income family.
Another telling statistic comes from the National Longitudinal Survey of Freshmen which found that while only 13 percent of blacks are first and second generation immigrants, this disproportionately advantaged group makes up 27 percent of blacks at the selective universities studied and 41 percent of blacks in the Ivy League. This means the children of black immigrants are 1.5 time as likely as the average person to enroll in a selective college and 2.3 times as likely to enroll in an Ivy League college, while whites and non-immigrant blacks have below-average chances.
Even MIT seems to have fallen prey to obsessing over race and ignoring the general goal of equal opportunity. If we use Pell Grant eligibility as a measure of the number of working class students at a university, MIT looks good compared to its peers — but still, just 14 percent of MIT students are Pell Grant eligible, while from what I can tell, 50 percent of the college-aged population is eligible. This is a far cry from a level playing field.
Racial preferences, on the other hand, are so strong they have completely closed the underrepresentation gap for minorities at MIT to the point that, surprisingly, whites are the most underrepresented group, or at least are comparably underrepresented with blacks. MIT is about 40 percent white. Considering that as a nation we are 63 percent white, that’s only 66 percent as many white students as you would expect.
It is as we might have predicted: Racial preferences have leveled the playing field to some extent, but it is still far from level for everyone. White middle class students, especially, seem to have the deck stacked against them.
I don’t think its controversial to say that the system for putting applications “in context” could use a definite tune-up to get beyond just race, presumably from doing research into the causes of educational inequality and giving preferences for specific disadvantages. (Eliminating some of these disparities at their root would be a nice too.)
But to answer the question in the title: what can Sonia Sotomayor’s nomination teach us? Nothing. The arguments in favor of ethnic diversity don’t make sense and strong racial preferences are antiquated. The sad truth is that culture war zealots obsessing over the racial aspect of Sotomayor’s nomination are playing in the hands of people eager to prove they are bigots, which only hurts the cause of improving educational opportunity.
There are many legitimate disparities in our society; fixing them requires thinking beyond race into their causes, thinking creatively about responses, and evaluating new programs rigorously. That is the approach America deserves.
Steve White is a junior in the Department of Economics.